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In re Creag

Court of Appeals of Texas, Twelfth District, Tyler

June 21, 2017

IN RE: RODERICK DEMETRIUS CREAG, SR., RELATOR RODERICK DEMETRIUS CREAG, SR., Relator
v.
HON. PAM FLETCHER, Respondent

         ORIGINAL PROCEEDING

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          PER CURIAM.

         Roderick Demetrius Creag, Sr. filed this original proceeding, in which he complains of the trial court's failure to rule on his motion to correct a bill of costs.[1] We deny the petition.

         Background

         On February 16, 2017, Relator filed a motion to correct the bill of costs to delete fees he alleged to be unauthorized. On April 18, he sent a letter to the trial court and asked for a ruling on the motion. He contends that the trial court has yet to rule on his motion, and asks this Court to order the trial court to rule on the motion.

         Prerequisites to Mandamus

         Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). A writ of mandamus will issue only when the relator has no adequate remedy by appeal and the trial court committed a clear abuse of discretion. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). The relator has the burden of establishing both of these prerequisites. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.-Tyler 2014, orig. proceeding.). "[M]andamus will not issue when the law provides another plain, adequate, and complete remedy." In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig. proceeding).

         Availability of Mandamus

         To obtain a writ of mandamus compelling a trial court to consider and rule on a motion, the relator must show that the trial court (1) had a legal duty to perform a nondiscretionary act, (2) was asked to perform the act, and (3) failed or refused to do so. In re Molina, 94 S.W.3d 885, 886 (Tex. App.-San Antonio 2003, orig. proceeding). Generally, a trial court has a nondiscretionary duty to consider and rule on a motion within a reasonable time. In re Thomas, No. 12-05-00261-CV, 2005 WL 2155244, at *1 (Tex. App.-Tyler Sept. 7, 2005, orig. proceeding) (mem. op.). A trial court cannot be expected to consider a motion not called to its attention. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.-Amarillo 2001, orig. proceeding). It is incumbent upon the relator to establish that the motion has been called to the trial court's attention. See id.

         In this case, Relator's petition includes a copy of a letter purportedly sent to the trial court in April 2017. The letter is not file stamped or certified, and the record does not evidence that the letter was actually received by the trial court. See Tex. R. App. P. 52.3(k)(1)(A); see also In re Taylor, No. 06-16-00016-CV, 2016 WL 1435386, at *1 (Tex. App.-Texarkana Apr. 12, 2016, orig. proceeding) (mem. op.) (relator's letters to court were not file-marked or accompanied by other evidence showing their receipt, and did not show "the trial court received, was aware of, and was asked to rule on his pleadings[]"). Nor does Relator's petition contain evidence, such as a docket sheet, demonstrating that the trial court has not ruled on his motion. See Tex. R. App. P. 52.3(k)(1)(A) (requiring a relator to provide "a certified or sworn copy of any order complained of, or any other document showing the matter complained of"); Molina, 94 S.W.3d at 886; see also In re Vasquez, No. 05-15-00592-CV, 2015 WL 2375504, at *1 (Tex. App.-Dallas May 18, 2015, orig. proceeding) (mem. op.) (denying petition that failed to include a docket sheet or other form or proof that trial court had not ruled on motion). Thus, Relator has not shown his entitlement to mandamus relief.

         Disposition

         Because Relator has not shown that he is entitled to mandamus relief, we deny ...


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